Flint water defendants take case to Michigan Supreme Court

The Michigan Supreme Court heard oral arguments Wednesday on whether defendants in the Flint water criminal case were denied a key constitutional right. If they win, charges against defendants going all the way up to ex-Gov. Rick Snyder could be thrown out.

The specific issue before the court is whether three of the defendants were denied their right to a preliminary hearing. The preliminary hearing is where prosecutors have to show a judge they have enough evidence to take a case to trial. But the government says that step’s been covered because these charges were brought in this unique process where a judge acts as both prosecutor and grand jury.

The state’s lawyers focused on the argument that even if it’s unusual, the law allows for a one-judge grand jury to decide whether to charge or not to charge.

Assistant Attorney General Christopher Kessel said the Flint water case is an unusual situation “…where the allegations of government corruption at the highest level do result in the victimization of an entire city. Now, I appreciate that defendants want to have a preliminary exam, but defendants are not entitled to choose their right of prosecution.”

The defendants are former state Health and Human Services Director Nick Lyon, who is charged with involuntary manslaughter. Former state health official Nancy Peeler is charged with misconduct in office and willful neglect of duty. Richard Baird, a top adviser to then-Gov. Rick Snyder, faces charges of misconduct, perjury and extortion.

Defense counsel Harold Gurewitz represents Nancy Peeler. He said the preliminary examination protects defendants’ rights.

“That includes the right to confront witnesses, to review discovery, and to understand the theory of the government’s case so that can be challenged,” he argued.

Justice Elizabeth Clement recused herself from the case because she worked with some of the defendants as then-Gov. Rick Snyder’s legal counsel.

The remaining six justices had a lot of pointed questions. Most of them were aimed at the state’s arguments and why allowing a single person to act in multiple roles behind closed doors was appropriate.

“A citizens grand jury stands between the accused and the government,” said Chief Justice Bridget Mary McCormack. “Our fellow citizens get to stand between us and the government. Here you have the government standing between the accused and the government? There are important differences.”

The response was, again, the government gets to decide which legal mechanism to use to determine whether charges can be brought.

Snyder was not in the room and is not a named defendant in the cases argued before the court. He did have an attorney who presented a short friend-of-the-court argument. There are stakes for him in this decision because he also faces criminal charges related to the Flint water crisis. He faces two counts of willful neglect of duty. All told, nine people have been charged and all have an interest in what the Supreme Court decides.

John Bursch represents Nicholas Lyon. He called combining the power of a judge and a prosecutor into one office to consider and issue charges “uniquely unconstitutional.”

“Because it’s the judge who’s hearing the evidence and issuing the indictment that the prosecutor is supposed to be issuing,” he argued.

And, if Bursch gets his way, he says it’s possible all the charges against all nine Flint defendants would be dropped.

“So if the court agrees with us, then every single one of these cases has to be thrown out,” Bursch said following the hearing.

If that happens, the attorney general’s office would face a decision on whether to start over and file new criminal charges in the Flint water case or give up. The Supreme Court’s current term ends in July.